Rule 12

Federal Rule of Civil Procedure 12

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a) TIME TO SERVE A RESPONSIVE PLEADING.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued

in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) HOW TO PRESENT DEFENSES

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the plead- ings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. Allparties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) MOTION FOR A MORE DEFINITE STATEMENT. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

(g) JOINING MOTIONS.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule

12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) WAIVING AND PRESERVING CERTAIN DEFENSES.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:

(A) omitting it from a motion in the circumstances de-scribed in Rule 12(g)(2); or (B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or

(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) HEARING BEFORE TRIAL. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion— and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

Essential Points

For a practitioner, Rule 12(a) is very important because it provides basic rules on how long a party has to respond to a pleading. For law students, most examination question will probably focus on Rule 12(b).

12(b) explains that a number of defenses can be raised as motions to dismiss the case. Some of these defenses can be waived; that is, if a party does not raise the defense it is lost forever. Other defenses will never be waived.

12(b)(1) is a defense based on lack of subject matter jurisdiction. This defense can never be waived. Federal courts may only hear certain types of cases, usually based on a federal question or diversity. If a claim does not belong in federal court it should be dismissed – – even if the case has been proceeding for years. If a court recognizes that there is no federal subject matter jurisdiction it should dismiss the case on its own initiative regardless of whether a party has moved to dismiss the case or not.

Below are videos on diversity and federal question jurisdiction:

<br />

<br />

12(b)(2) allows a party to move to dismiss for lack of personal jurisdiction. This defense can be waived. Personal jurisdiction means a court’s power over a party in the case. By choosing to litigate in a certain state the plaintiff has essentially agreed that the court has jurisdiction over hm. But what about the defendant? The defendant can argue that the court does not have jurisdiction over him if he is from a different state or another country.

Below is a video on personal jurisidction.

<br />

12(b)(3) provides for dismissal based on improper venue. Improper venue means the case is being brought in the wrong court, but not because of subject matter jurisdiction or personal jurisdiction. Venue means that the case was brought in the wrong district court. Defendants can ask the court to dismiss the case or to transfer the case to the correct court. Venue rules are based on 28 USC §1391.

12(b)(4) and (5) allow a party to move to dismiss for insufficient process and insufficient service of process. Insufficient process means that the summons is defective. For example, if a plaintiff fails to provide a copy of the complaint with the summons or the summons is served too late, the defendant can move to dismiss the case for insufficient process. Insufficient service of process means that the summons was not properly served. For example, the summons and complaint were not properly provided to the defendant.

A 12(b)(6) motion to dismiss is a useful mechanisms to have a court dismiss a case or at least certain claims pre-trial. A 12(b)(6) motion argues that a complaint did not satisfy applicable pleading requirements or for another reason does not state a claim for relief. For example, let’s say a complaint fails to meet Rule 9‘s pleading requirements because it does not state when or where an alleged fraud occurred. The defendant could move to dismiss the complaint pursuant to 12(b)(6). When a court decides a 12(b)(6) motion it usually confines itself to the facts as alleged in the complaint. If a defendant relies on other documents or new facts outside the complaint in his motion to dismiss, the court will either deny the motion or might convert the motion to a motion for summary judgment (Rule 56).

Rule 12(b)(7) concerns failure to join an indispensable party pursuant to Rule 19. As with lack of subject matter jurisdiction (12(b)(1)), this can be raised at any time.